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Lewis v. McCracken

Superior Court of Delaware

July 5, 2017

TIFFANY R. LEWIS, Individually and as the Parent and Natural Guardian of TYRA CURTIS, a minor, Plaintiffs,
v.
A. DIANE McCRACKEN, M.D. and ALL ABOUT WOMEN OF CHRISTIANA CARE, INC. Defendants.

          Submitted: April 27, 2017

         On Plaintiffs' Application to "[Discuss with the Jury at the Retrial of this Case] Defendant All About Women of Christiana Care, Inc.'s Breach of the Applicable Standard of Care by Its Midwife Employee During the Delivery of Tyra Curtis." DENIED.

          Bruce L. Hudson, Esquire and Ben T. Castle, Esquire, Hudson & Castle Law, LLC, Wilmington, Delaware, Attorneys for Plaintiffs.

          Gregory S. McKee, Esquire, Wharton Levin Ehrmantraut & Klein P.A., Wilmington, Delaware; and David Batten, Esquire and Ryan Bakelaar, Esquire, Batten Lee, PLLC, Raleigh, North Carolina, Attorneys for Defendants.

          MEMORANDUM OPINION

          Richard R. Cooch, R.J.

         I. INTRODUCTION

         Pending before the Court is Plaintiffs' application to "discuss" a new theory of negligence against Defendant All About Women of Christiana Care, Inc. ("AAW") with the jury. Plaintiffs contend that during the first trial of this action, evidence was unexpectedly produced during cross-examination of Defendants' expert that a nurse in the delivery room gave an improper instruction to the mother to "push" that fell below the standard of care. Plaintiffs now wish to assert this new claim of negligence directly against AAW, alleging that it is responsible for the supposed negligent act(s) of its employee, despite the fact agreed to by all parties that the statute of limitations in this case has expired as to the nurse employee.

         Accordingly, the Court must decide whether Plaintiffs may present a new theory of direct (rather than vicarious) liability to the jury against AAW for the allegedly wrongful acts of its employee Claire Szymanski ("Nurse Szymanski") when the statute of limitations applicable to Nurse Szymanski's alleged negligent act has now otherwise concededly expired. The Court finds that such a claim is not a direct claim against AAW, but rather at bottom a claim that AAW is vicariously liable for the allegedly negligent acts of Nurse Szymanski. As the statute of limitations on Nurse Szymanski's alleged negligence has expired, no claim of vicarious liability can exist against AAW for Nurse Szymanski's alleged negligence. Accordingly, Plaintiffs' application is DENIED.

         II. FACTS AND PROCEDURAL HISTORY[1]

         The detailed facts underlying this dispute were set forth in this Court's earlier decision on Defendants' "Motion in Limine to Preclude Testimony by Marc Engelbert, M.D., " Plaintiffs' expert witness on the standard of care and causation:

This is a medical negligence case in which Plaintiffs allege that Defendant Dr. A. Diane McCracken, Plaintiffs obstetrician, caused Plaintiff Tiffany Lewis's daughter, Tyra, to suffer permanent brachial plexus palsy (a/k/a Erb's Palsy) during childbirth. Erb's Palsy is a medical disorder in which the brachial plexus nerve-located near the shoulder-is stretched and/or torn, causing impaired neurological function of the corresponding arm. While delivering Tyra, Dr. McCracken determined that, after delivering Tyra's head, the delivery of her left shoulder was impeded by her mother's pubic bone, a medical condition known as "shoulder dystocia." Upon making this determination, Plaintiff alleges that Dr. McCracken pulled on the baby's head in an attempt to deliver the shoulder, an obstetric maneuver known as applying "traction."
Following her birth, Tyra was diagnosed with permanent Erb's Palsy. Plaintiff subsequently filed suit against Dr. McCracken and the various organizations to which she belonged in her capacity as an obstetrician and gynecologist.[2]

         Plaintiffs, for reasons not clear to the Court, did not depose Nurse Szymanski until November 9, 2016, five days before the trial began. However, Plaintiffs had been aware that a nurse midwife was present in the delivery room by, at the latest, the date of Dr. McCracken's deposition on January 27, 2016. Nevertheless, Plaintiffs did not ask for the name of the nurse midwife during Dr. McCracken's deposition, nor did they seek to depose Nurse Szymanski until November 3, 2016. When Plaintiffs did depose Nurse Szymanski, Nurse Szymanski testified that Tiffany was given an instruction to "push" after the shoulder dystocia was diagnosed.[3] However, Plaintiffs made no effort to develop this possible theory of negligence prior to trial, nor did they bring this matter to the Court's attention before the trial began on November 14, 2016 (the jury was selected on November 9).

         During the presentation of Defendants' case-in-chief at trial, Defendants called (among other witnesses) Nurse Szymanski as a fact witness and Dr. Joseph Ouzounian, M.D. as an expert on the standard of care and causation in this case. Nurse Szymanski was the first of the two to testify. During her cross-examination by Plaintiffs' counsel, Nurse Szymanski stated that, upon realizing in the delivery room that Tyra's shoulder was impacted against Tiffany's pubic bone (the "turtle sign"), she instructed Tiffany to push.[4]

         Dr. Ouzounian, whom Plaintiffs elected not to depose prior to trial, then volunteered a somewhat equivocal opinion regarding the applicable standard of care upon encountering the turtle sign:[5]

We generally teach [the mom to stop pushing after the shoulder dystocia is diagnosed]. Not because it would cause any degree of harm necessarily, but it certainly doesn't help. You say stop pushing and let me go on to my next maneuver and you can push again.
[O]nce the shoulder is stuck, you want to go to the maneuver to try and free it up. If it's still stuck and you tell her to keep pushing, first of all, it's not going to help; and second of all, there is a potential for more injury.[6]

         In response to Plaintiffs' counsel's question about whether it "would be beneath the standard of care to tell the mother to keep pushing once the shoulder dystocia is [diagnosed], " Dr. Ouzounian again somewhat equivocally replied, "Yes, it could be."[7] In response to a later, similar, question from Plaintiffs' counsel, Dr. Ouzounian stated that "generally . . . once the shoulder is stuck or in between the maneuvers, it's better, preferable, to have her not push."[8] Dr. Ouzounian was not asked, and did not testify on, whether such an instruction was a proximate cause of Tyra's injuries.

         The case was submitted to the jury on Monday, November 21. During deliberations, the jury sent a note to the Court that read: "Is Dr. McCracken liable for the actions of the employees of All About Women who were in the delivery room?"[9] Although Plaintiffs only claim at trial was that Dr. McCracken negligently applied excessive lateral traction to Tyra's head, and that AAW was vicariously liable for Dr. McCracken's alleged negligence, Plaintiffs argued in connection with the jury's note that, for the first time at that juncture, the jury could potentially find Dr. McCracken liable for the acts of the other staff in the delivery room. The Court ruled, while the jury was still deliberating, that Plaintiff could not make a new claim of negligence at that stage of the proceedings, and then instructed the jury that it could not find Dr. McCracken liable for the acts of the AAW staff in the delivery room at the time of Tyra's birth. On November 22, a mistrial was declared as a result of a hung jury.

         On December 28, 2016, the Court held a scheduling conference to set a new trial date. The new trial date was set for November 16, 2017. Additionally, at that conference, Plaintiffs' counsel made a request to argue a new direct claim of negligence against AAW during the second trial. The Court afforded Plaintiffs an opportunity to make such a motion, and set January 11, 2017 as a deadline for "Motions to Add a Party or to Amend a Pleading."[10]

         On January 10, 2017, Plaintiffs filed a letter memorandum in which they made an application to "[discuss] All About Women of Christiana Care, Inc.'s breach of the applicable standard of care by its midwife employee during the delivery of Tyra Curtis . . . with the jury."[11] This is the first time in the present litigation (other than during ...


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